Finding of Substantial Inadequacy of Implementation Plan; Call for California State Implementation Plan Revision; South Coast, 889-894 [2012-31642]

Download as PDF TKELLEY on DSK3SPTVN1PROD with Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this final action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP obligations discussed herein do not apply to Indian Tribes, and thus this action will not impose substantial direct costs on tribal governments or preempt tribal law. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 8, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 19:37 Jan 04, 2013 Jkt 229001 Dated: December 18, 2012. Jared Blumenfeld, Regional Administrator, Region IX. Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. Subpart D—Arizona 2. Section 52.131 is added to read as follows: ■ § 52.131 Control Strategy and regulations: Fine Particle Matter. (a) Determination of Attainment: Effective February 6, 2013, EPA has determined that, based on 2009 to 2011 ambient air quality data, the Nogales PM2.5 nonattainment area has attained the 2006 24-hour PM2.5 NAAQS. This determination suspends the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment for as long as this area continues to attain the 2006 24-hour PM2.5 NAAQS. If EPA determines, after notice-and-comment rulemaking, that this area no longer meets the 2006 PM2.5 NAAQS, the corresponding determination of attainment for that area shall be withdrawn. (b) [Reserved] [FR Doc. 2012–31639 Filed 1–4–13; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2012–0721; FRL–9767–3] Finding of Substantial Inadequacy of Implementation Plan; Call for California State Implementation Plan Revision; South Coast Environmental Protection Agency. ACTION: Final rule. AGENCY: In response to a remand by the United States Court of Appeals for the Ninth Circuit, and pursuant to the Clean Air Act, EPA is taking final action SUMMARY: Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Nitrogen VerDate Mar<15>2010 oxides, Sulfur oxides, Reporting and recordkeeping requirements. PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 889 to find that the California State Implementation Plan (SIP) for the Los Angeles-South Coast Air Basin is substantially inadequate to comply with the obligation to adopt and implement a plan providing for attainment of the 1hour ozone standard. In response to this finding, California is required to submit a SIP revision correcting this deficiency within 12 months of the effective date of this rule. If EPA finds that California has failed to submit a complete SIP revision as required by this final rule, or if EPA disapproves such a revision, such finding or disapproval would trigger clocks for mandatory sanctions and an obligation for EPA to impose a Federal Implementation Plan. EPA is also taking final action establishing the order in which mandatory sanctions would apply in the event that EPA makes a finding of failure to submit a SIP revision or disapproves the SIP revision. Specifically, the offset sanction would apply 18 months after such finding or disapproval and highway funding restrictions would apply six months later. Sanctions would not apply if EPA first takes action to stay the imposition of the sanctions or to stop the sanctions clock based on a preliminary or final determination that the State has corrected the SIP deficiencies. DATES: This rule is effective on February 6, 2013. ADDRESSES: EPA has established docket EPA–R09–OAR–2012–0721 for this action. The index to the docket for this action is available electronically at http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California, 94105– 3901. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Wienke Tax, Air Planning Office, U.S. Environmental Protection Agency, Region 9, Mailcode AIR–2, 75 Hawthorne Street, San Francisco, California 94105–3901, 415–947–4192, tax.wienke@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ refer to EPA. Table of Contents I. Summary of Proposed Action E:\FR\FM\07JAR1.SGM 07JAR1 890 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations II. Response to Public Comments III. Final Action and Consequences IV. Statutory and Executive Order Reviews I. Summary of Proposed Action TKELLEY on DSK3SPTVN1PROD with On September 19, 2012 (77 FR 58072), EPA proposed to find that the California SIP for the Los Angeles-South Coast Air Basin (South Coast) 1 is substantially inadequate to comply with the obligation to adopt and implement a plan providing for attainment of the 1hour ozone national ambient air quality standard (NAAQS or ‘‘standard’’). EPA proposed this finding pursuant to the ‘‘SIP call’’ authority found in section 110(k)(5) of the Clean Air Act (CAA or ‘‘Act’’).2 In our proposed rule, we explained that States remain obligated to adopt and implement an attainment demonstration plan for the 1-hour ozone standard, notwithstanding the revocation of the standard in 2005, under EPA’s ‘‘anti-backsliding’’ regulations governing the transition from the 1-hour ozone standard to the 1997 8-hour ozone standard.3 See 40 CFR 51.905(a)(1)(i). EPA also proposed to require California to submit a revision to its SIP correcting these deficiencies by a date no later than 12 months after the effective date of a final rule finding the current SIP inadequate. The SIP revision must meet the requirements of CAA section 182(c)(2)(A) 4 and demonstrate attainment of the 1-hour ozone standard as expeditiously as practicable but no later than five years from the effective date of a final SIP call unless the State can justify a later date, not to exceed 10 years beyond the effective date of the 1 The South Coast includes Orange County, the southwestern two-thirds of Los Angeles County, southwestern San Bernardino County, and western Riverside County (see 40 CFR 81.305). 2 Section 110(k)(5) provides, in relevant part, that: ‘‘Whenever [EPA] finds that the [SIP] for any area is substantially inadequate to attain or maintain the relevant [NAAQS], * * *, or to otherwise comply with any requirement of this chapter, [EPA] shall require the State to revise the plan as necessary to correct such inadequacies.’’ 3 Our finding of substantial inadequacy under CAA section 110(k)(5) for failure to ‘‘adopt and implement’’ a 1-hour ozone attainment demonstration is not intended as a finding of nonimplementation under CAA section 179(a)(4). 4 Under CAA section 182(c)(2)(A), the State must submit a revision to the SIP that includes a demonstration that the plan, as revised, will provide for attainment of the ozone NAAQS. The attainment demonstration must be based on photochemical grid modeling or any other analytical method determined by EPA to be at least as effective. Section 182(c)(2)(A) applies within ozone nonattainment areas classified as ‘‘serious,’’ but as a general matter, areas classified as ‘‘extreme’’ for the ozone nonattainment area, such as the South Coast, are subject to the requirements for lower-classified areas, such as those for ‘‘serious’’ areas, as well as those prescribed specifically for ‘‘extreme’’ areas. VerDate Mar<15>2010 19:37 Jan 04, 2013 Jkt 229001 final SIP call. In considering whether a period longer than five years is warranted, EPA must consider the severity of the remaining nonattainment problem in the South Coast and the availability and feasibility of pollution control measures. See section 172(a)(2). We noted that if EPA were to find that California has failed to submit a complete SIP revision or if EPA disapproves such revision, such finding or disapproval would trigger clocks for mandatory sanctions and an obligation for EPA to impose a Federal Implementation Plan (FIP). EPA proposed that if EPA makes such a finding or disapproval, the offset sanction would apply 18 months after such finding or disapproval and highway funding restrictions would apply six months later. Sanctions would apply unless EPA first takes action to stay the imposition of the sanctions or to stop the sanctions clock based on a preliminary or final determination that the State has cured the SIP deficiencies. EPA proposed this action in response to a decision by the United States Court of Appeals for the Ninth Circuit (Ninth Circuit or Court) in a lawsuit challenging EPA’s partial approval and partial disapproval of the 2003 South Coast 1-Hour Ozone SIP.5 See Association of Irritated Residents v. EPA, 632 F.3d 584 (9th Cir. 2011), reprinted as amended on January 27, 2012, 686 F.3d 668, further amended February 13, 2012 (‘‘AIR v. EPA’’). The 2003 South Coast 1-Hour Ozone SIP was intended by California to update the attainment demonstration for the 1-hour ozone standard for the South Coast contained in the 1997/1999 South Coast 1-Hour Ozone SIP that EPA approved in 2000. Among other issues, the petitioners in the AIR v. EPA case challenged EPA’s conclusion that the Agency’s disapproval of the updated attainment demonstration for the 1-hour ozone standard in the 2003 South Coast 1-Hour Ozone SIP did not obligate the Agency to promulgate a FIP because the plan that was disapproved was not required to be submitted given that the SIP contained a fully-approved 1-hour ozone attainment demonstration for the South Coast (i.e., the 1997/1999 South Coast 1-Hour Ozone SIP). The court disagreed with EPA, and held that EPA must promulgate a FIP under CAA section 110(c) or issue a SIP call where EPA disapproves a new attainment demonstration unless the Agency determines that the SIP as 5 EPA’s final action challenged in the AIR v. EPA case was published at 74 FR 10176 (March 10, 2009). PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 approved remains sufficient to demonstrate attainment of the NAAQS. In response, EPA reviewed the 1997/ 1999 South Coast 1-Hour Ozone SIP to determine whether it remained sufficient to demonstrate attainment of the 1-hour ozone standard notwithstanding the disapproval of the updated 1-hour ozone attainment demonstration in the 2003 South Coast 1-Hour Ozone SIP and determined that the SIP was substantially inadequate to comply with the obligation under EPA’s anti-backsliding regulations to adopt and implement a 1-hour ozone attainment demonstration. In the September 19, 2012 proposed rule, EPA proposed this finding of substantial inadequacy based on the following considerations: • Documentation included in the 2003 South Coast 1-Hour Ozone SIP showing that motor vehicle emissions were significantly underestimated in the 1997/1999 South Coast 1-Hour Ozone SIP; that the carrying capacity associated with attainment of the 1-hour ozone standard was significantly lower than projected for the 1997/1999 South Coast 1-Hour Ozone SIP; and that, as a result, additional emissions reductions would be necessary to attain the 1-hour ozone standard by the applicable attainment date (November 15, 2010) beyond those incorporated in the 1997/ 1999 South Coast 1-Hour Ozone SIP; • EPA’s ‘‘anti-backsliding’’ requirements promulgated in 2004 governing the transition from the 1-hour ozone standard to the 1997 8-hour ozone standard and requiring a state to adopt and implement an attainment demonstration for the 1-hour ozone standard (40 CFR 51.905(a)(1)(i)) notwithstanding the revocation of the 1hour ozone standard in areas designated as nonattainment for the 1997 8-hour ozone standard; and • EPA’s final determination at 76 FR 82133 (December 30, 2011) that the South Coast area failed to attain the 1hour ozone standard by the applicable attainment date (November 15, 2010). See the proposed rule at 77 FR 58072, at 58074–58075 (September 19, 2012). For more information about the 1hour and 8-hour ozone standards, the designations and classifications for the South Coast, the various South Coast SIP revisions submitted in response to CAA nonattainment area requirements, the litigation over EPA’s action on the 2003 South Coast 1-Hour Ozone SIP, and the rationale behind the proposed 12-month deadline and sequence of mandatory sanctions, please see our September 19, 2012 proposed rule. E:\FR\FM\07JAR1.SGM 07JAR1 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations II. Response to Public Comments TKELLEY on DSK3SPTVN1PROD with As stated above, on September 19, 2012, EPA proposed to find that the California SIP was substantially inadequate to comply with the obligation to adopt and implement a plan providing for attainment of the 1hour ozone standard (see 77 FR 58072), and held a 30-day comment period which ended on October 19, 2012. On October 16, 2012, we received two requests to extend the comment period. On October 25, 2012, we published a Federal Register notice reopening the comment period for 14 days (see 77 FR 65151). This comment period ended on November 8, 2012. In response to the proposed rule, we received 11 comment letters that we have grouped into five categories. We received comments from: • Pechanga Indian ReservationTemecula Band of Luiseno Mission Indians (‘‘Pechanga Tribe’’); • South Coast Air Quality Management District (SCAQMD), and the State of California Air Resources Board (CARB) (‘‘government agencies’’); • Coalition for Clean Air, Communities for a Better Environment, Natural Resources Defense Council; and Physicians for Social Responsibility— Los Angeles, (‘‘environmental and community groups’’); • American Chemistry Council, American Coatings Association, Consumer Specialty Products Association, International Fragrance Association, National Aerosol Association, and Personal Care Products Council (‘‘industry groups’’); and • A private citizen. None of the commenters challenged the proposed finding of substantial inadequacy, the proposed one-year deadline for submittal of a new 1-hour ozone attainment plan, the proposed sequence for application of mandatory sanctions in the event of failure by California to meet the deadline, or the proposed application of the provisions in 40 CFR 52.31 regarding staying the sanctions clock and deferring the imposition of sanctions. Instead, the comments relate to the contents of a future 1-hour ozone attainment demonstration for the South Coast and the potential impacts of the SIP call on Indian tribes in the region. Below, we set forth a summary of the comments and EPA’s responses. proposed action on federally recognized tribes located in the region. Response 1: On November 28, 2012, EPA Region IX staff met with members and representatives of the Pechanga Tribe and explained that, as stated in the proposed rule, EPA foresaw no direct impact to the Tribe due to a SIP call for a new South Coast 1-hour ozone attainment demonstration plan. EPA acknowledged that a portion of Pechanga Indian country lies within the South Coast 1-hour ozone ‘‘extreme’’ nonattainment area, but indicated that, under the ‘‘Tribal Authority Rule’’ (40 CFR part 49), tribes are not subject to SIP submittal deadlines. See 40 CFR 49.4(a).6 Moreover, under 40 CFR 49.4(c), Tribes will also not be treated as States with respect to the mandatory imposition of sanctions under section 179 of the Act because of a failure to submit an implementation plan or required plan element by a specific deadline, or the submittal of an incomplete or disapproved plan or element. Thus, the Tribes in the South Coast will not be subject to the deadline that we are setting today for the State of California for submittal of a new 1-hour ozone attainment demonstration for the South Coast, and the Tribes will not be subject to mandatory sanctions in the event that sanctions are imposed as a consequence of failure to submit or disapproval of the submitted SIP revision. Government Agencies Pechanga Tribe Comment 2: In response to the attainment date that would be established under the proposed SIP call (i.e. as expeditiously as practicable but no later than five years unless the State can justify a later date, not to exceed 10 years), SCAQMD indicates that it and CARB intend to request and justify that the full ten years are needed for the attainment demonstration. Response 2: This comment is not relevant for purposes of the current rule as it concerns the potential contents of a future SIP submittal from the State. Consistent with the requirement of CAA section 172(a)(2)(A), EPA would consider the severity of nonattainment and the availability and feasibility of pollution control measures in determining whether to approve any future submitted plan with an attainment date that is later than five years from the effective date of this final rule. Comment 1: In its comment letter, the Pechanga Tribe requested an opportunity to consult on a government to government basis with EPA Region IX regarding the potential impacts of this 6 Under 40 CFR 49.4(a), Tribes will not treated as States with respect to specific plan submittal and implementation deadlines for NAAQS-related requirements, such as the deadline established in today’s final SIP call. VerDate Mar<15>2010 19:37 Jan 04, 2013 Jkt 229001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 891 Comment 3: SCAQMD asserts that the new technology provisions of CAA section 182(e)(5) are available for the purposes of the new 1-hour ozone attainment demonstration plan for the South Coast so long as the reductions to be obtained from them are not needed for the first ten years after November 15, 1990, i.e. through November 15, 2000, citing CAA section 182(e)(5). While the SCAQMD asserts that the plain language of section 182(e)(5) settles any question as to whether that provision applies to a new 1-hour ozone attainment demonstration plan for the ‘‘extreme’’ South Coast nonattainment area, it also asserts that there is no policy reason to interpret the statute to preclude reliance on section 182(e)(5) even if the language were ambiguous. CARB’s comment letter expressed agreement and support for comments provided by SCAQMD on the availability of CAA section 182(e)(5) new technology provisions for the new South Coast 1-hour ozone attainment demonstration plan. Response 3: We did not explicitly address section 182(e)(5) 7 in our proposed SIP call because its availability or lack of availability is not directly relevant to the issue of our finding of substantial inadequacy of the California SIP for the South Coast with respect to the 1-hour ozone standard, or the issues of submittal or attainment dates. Thus, this comment is not relevant for purposes of the current rule as it concerns the potential contents of a future SIP submittal from the State. We will consider the approvability of the future South Coast 1-hour ozone attainment demonstration, including the control strategy on which it relies, once the plan is submitted, in the context of a subsequent rulemaking on the submitted plan. Environmental and Community Groups Comment 4: Citing the long period of nonattainment and the health effects of ozone at levels even below the 1-hour ozone standard, environmental and community groups request that the final 7 Section 182(e)(5) states, in part: ‘‘[EPA] may, * * *, approve provisions of an implementation plan for an Extreme Area which anticipate development of new control techniques or improvement of existing control technologies, and an attainment demonstration based on such provisions, if the State demonstrates to the satisfaction of the [EPA] that (A) such provisions are not necessary to achieve the incremental emission reductions required during the first 10 years after November 15, 1990; and (B) the State has submitted enforceable commitments to develop and adopt contingency measures to be implemented as set forth herein if the anticipated technologies do not achieve planned reductions.’’ Provisions in a SIP that rely on section 182(e)(5) are commonly referred to as ‘‘black box’’ or ‘‘new technology’’ provisions. E:\FR\FM\07JAR1.SGM 07JAR1 TKELLEY on DSK3SPTVN1PROD with 892 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations rule include more details about the need for a 1-hour ozone plan in the South Coast. Response 4: EPA believes that the Agency provided sufficient support for its finding of substantial inadequacy and related SIP call. The rationale for the proposed finding and SIP call is set forth at 77 FR, 58072, 58074–58075. In short, in response to a remand by the Ninth Circuit in the AIR v. EPA case, we proposed to find the approved 1997/ 1999 South Coast 1-Hour Ozone SIP is substantially inadequate to provide for attainment of the 1-hour ozone standard and is therefore substantially inadequate to comply with EPA’s ‘‘antibacksliding’’ requirement at 40 CFR 51.905(a)(1)(i) to adopt and implement such a plan for the South Coast. We based this determination on a review of the technical information and updated control measure strategy contained in the 2003 South Coast SIP and also considered our determination in December 2011 that the South Coast had failed to attain the applicable attainment date (2010) for the 1-hour ozone standard. Today, we are taking final action to find that the California SIP is substantially inadequate and to issue the SIP call for a new 1-hour ozone attainment demonstration plan for the South Coast on the basis of the rationale set forth in the proposed rule. Comment 5: The environmental and community groups believe that EPA should clearly state that the future 1hour ozone attainment demonstration plan cannot rely on the new technology provisions of section 182(e)(5) (i.e., the ‘‘black box’’). The groups contend that the text of the CAA demonstrates that the black box was not intended to be used past the attainment date. In support for this contention, the groups note that, under section 182(e)(5), there can be no contingency measures that are ‘‘adequate to produce emissions reductions sufficient, * * * to achieve the periodic emissions reductions * * * and attainment by the applicable dates’’ where, as is the case for South Coast, the attainment date (2010) has passed. Response 5: In issuing a SIP call, CAA section 110(k)(5) directs EPA to the extent that EPA deems appropriate to subject the State to the requirements of this chapter to which the State was subject when it developed and submitted the plan for which such finding was made, except that the EPA may adjust any dates applicable under such requirements as appropriate (except that the EPA may not adjust any attainment date prescribed under part D of this subchapter, unless such date has elapsed.) In this case, the prescribed attainment date (2010) under part D of VerDate Mar<15>2010 19:37 Jan 04, 2013 Jkt 229001 the title I of the CAA for extreme 1-hour ozone nonattainment areas, such as the South Coast, has passed, and thus, CAA section 110(k)(5) authorizes EPA to establish a new attainment date for the purposes of the new South Coast 1-hour ozone attainment demonstration plan. With respect to black box provisions, as noted in response to comment #3, we did not explicitly address section 182(e)(5) in our proposed SIP call because its availability or lack of availability is not directly relevant to the issue of our finding of substantial inadequacy of the California SIP for the South Coast with respect to the 1-hour ozone standard, or the issues of submittal or attainment dates. Thus, this comment is not relevant for purposes of the current rule as it concerns the potential contents of a future SIP submittal from the State. We will consider the approvability of the future South Coast 1-hour ozone attainment demonstration, including the control strategy on which it relies, once the plan is submitted, in the context of a subsequent rulemaking on the submitted plan. Comment 6: The environmental and community groups assert that the new requirements that must be fulfilled by SIPs in 1-hour ozone areas that fail to attain by the statutory deadline are provided in section 179(d). They further assert that the failure to attain does not allow areas to start all over again under section 182 and that the new plan should be governed by sections 110 and 172, neither of which provide for a black box. Moreover, they contend that the attainment deadline for these areas is governed by section 179(d)(3). Response 6: We disagree that the new requirements for the new 1-hour attainment demonstration are governed by the provisions of section 179(d). The provisions of section 179(d) are triggered by a finding of failure to attain the standard under section 179(c), but under our anti-backsliding regulations governing the transition from the 1-hour ozone standard to the 8-hour ozone standard, we are no longer obligated to determine pursuant to section 179(c) whether an area attained the 1-hour ozone standard by the applicable attainment date for the 1-hour ozone standard. See 40 CFR 51.905(e)(2). In our 2011 determination that the South Coast failed to attain the applicable attainment date (2010) for the 1-hour ozone standard, we relied on section 301(a) and the relevant portion of section 181(b)(2) for the purpose of ensuring implementation of 1-hour ozone anti-backsliding requirements, such as contingency measures and section 185 major stationary source fee PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 programs. See 76 FR 82133, at 82145 (December 30, 2011). We did not make the determination of failure to attain under section 179(c) and thus the provisions of section 179(d) do not apply. As to the applicability of subpart 2 requirements, we note that the ‘‘substantial inadequacy’’ that is the basis for our SIP call relates directly to the requirements that continue to apply to an 8-hour ozone nonattainment area by virtue of that area’s classification under subpart 2 for the 1-hour ozone standard at the time we designated the area as nonattainment for the 1997 8hour ozone standard. In this instance, the South Coast 8-hour ozone nonattainment area remains subject to the obligation to adopt and implement the ‘‘applicable requirements’’ in 40 CFR 51.900(f) to the extent such requirements apply or applied to the South Coast as an ‘‘extreme’’ area for the 1-hour ozone standard in June 2004 (i.e., at designation for the 1997 8-hour ozone standard). One such ‘‘applicable requirement’’ is the attainment demonstration requirement. 40 CFR 51.900(f)(13). EPA had approved a 1-hour ozone attainment demonstration plan for the South Coast (i.e., the 1997/1999 South Coast Ozone SIP) prior to revocation, but in response to the remand in the AIR v. EPA case, we reconsidered the adequacy of 1997/1999 South Coast Ozone SIP for compliance with the obligation to adopt and implement a 1hour ozone attainment demonstration, and proposed to find the 1997/1999 South Coast Ozone SIP substantially inadequate to comply with the antibacksliding requirements and to require California to submit a new 1-hour ozone attainment demonstration plan for the ‘‘extreme’’ South Coast 1-hour ozone nonattainment area within one year of the effective date of the final determination. Even though we look to subpart 2 (of part D) and 40 CFR 51.905(a)(1) as the statutory and regulatory basis, respectively, for the new South Coast 1hour ozone attainment demonstration, we do not view our SIP call for the South Coast as allowing California to start all over again. The new 1-hour ozone attainment demonstration plan necessarily will build upon the extensive ozone control strategy developed over the past 40 years in the South Coast. Moreover, the new plan will not be allowed 20 years to demonstrate attainment of the 1-hour ozone standard, as was initially allowed for ‘‘extreme’’ ozone nonattainment areas, under the CAA Amendments of 1990. Rather, the new plan must E:\FR\FM\07JAR1.SGM 07JAR1 TKELLEY on DSK3SPTVN1PROD with Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations demonstrate attainment as expeditiously has practicable but no later than five years from the final SIP call unless California can justify a later date, not to exceed 10 years beyond the final SIP call, by considering the severity of the remaining nonattainment problem in the South Coast and the availability and feasibility of pollution control measures. Lastly, while we disagree that section 179(d)(3) applies to establish the attainment date for the new 1-hour ozone attainment demonstration plan, we note that the attainment deadline under section 179(d)(3) would only be a little over one year earlier than the deadline established in this final action because they both derive from the formulation set forth in section 172(a)(2) (‘‘* * * as expeditiously as practicable, but no later than 5 years, * * * may extend the attainment date * * * for a period no greater than 10 years * * *’’). The only difference is that the start date for the final SIP call will be the effective date of this final rule, whereas section 179(d)(3) would have established a start date of December 30, 2011, i.e., the publication date of our final finding of failure to attain the 1-hour ozone standard for the South Coast (76 FR 82133). Comment 7: The environmental and community groups contend that, if black box measures are allowed for an attainment plan developed after a region failed to attain the deadline, the state or local air district would have no incentive to close the black box within the attainment timeframes laid out in the CAA and could continually roll the black box over past the attainment date. Second, as a practical matter, the environmental and community groups contend that allowance for black box measures for a plan with at most a ten year planning horizon does not allow for the time necessary to develop the types of new technologies envisioned in section 182(e)(5). Response 7: With respect to black box provisions, as noted in response to comment #3, we did not explicitly address section 182(e)(5) in our proposed SIP call because its availability or lack of availability is not directly relevant to the issue of our finding of substantial inadequacy of the California SIP for the South Coast with respect to the 1-hour ozone standard, or the issues of submittal or attainment dates. Thus, this comment is not relevant for purposes of the current rule as it concerns the potential contents of a future SIP submittal from the State. Industry Groups Comment 8: The industry groups assert that EPA should not require VerDate Mar<15>2010 19:37 Jan 04, 2013 Jkt 229001 California to impose further VOC reductions on the consumer and commercial products for the new South Coast 1-hour ozone attainment demonstration. They point out that the 2003 State Strategy included stringent consumer and commercial products rules to achieve VOC reductions by 2010, and that this portion of the State Strategy was not withdrawn. They further contend that additional VOC reductions are unnecessary to provide for attainment of the 1-hour standard, and that EPA has the ability to issue a SIP call that focuses on NOX reductions to address ozone attainment in the South Coast, citing Michigan v. EPA. Finally, the industry groups assert that control measures for additional VOC reductions from consumer products would likely not constitute reasonably available control technology (RACT) because they would not be economically or technically feasible. Response 8: Through this action, EPA is not establishing specific requirements that must be included as part of the State’s plan to attain the 1-hour ozone NAAQS. In general, a State has fairly broad discretion to select the mix of control measures it will rely on to demonstrate attainment and EPA’s role is limited to ensuring that the State plan meets the minimum criteria in the CAA. We are requiring California to submit a new attainment demonstration for 1hour ozone, and we leave to the state’s discretion whether to impose further VOC reductions on sources. Private Citizen Comment 9: A private citizen states that the effect of methane on the air quality region is understated and asserts that methane affects the ozone layer. The citizen reports that current studies suggest spikes in methane emissions, possibly caused by broken pipelines, earthquake faults or malfunctioning mitigation equipment, and suggests that a multiple agency response is warranted to address the situation. Response 9: This action is being taken with regard to the State’s plan to address ground-level ozone and does not address the effect of pollutants on the ozone layer. EPA agrees that pollutants that affect the integrity of the ozone layer are a concern and separate programs under the Act address that problem. We note that many control measures that reduce VOC emissions have the co-benefit of reducing methane, and thus, the new 1-hour ozone attainment demonstration and related control measures could indirectly result in reductions of methane emissions in the region. PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 893 III. Final Action and Consequences For the reasons provided in the proposed rule, and after due consideration of the comments received, EPA is taking final action, pursuant to section 110(k)(5) of the CAA, to find that the California SIP is substantially inadequate to comply with the obligation to adopt and implement a plan providing for attainment of the 1hour ozone NAAQS in the Los AngelesSouth Coast ozone nonattainment area. In response to this finding, California must revise and submit to EPA an attainment demonstration SIP for 1-hour ozone for the South Coast within 12 months of the effective date of this rule. The SIP must provide for attainment of the 1-hour ozone NAAQS in the South Coast nonattainment area as expeditiously as practicable, but no later than five years from the effective date of today’s rule, unless the State can demonstrate that it needs up to an additional five years to attain in light of the severity of the nonattainment problem and the availability and feasibility of control measures. If EPA finds that California has failed to submit a complete SIP revision as required by this final rule, or if EPA disapproves such a revision, such finding or disapproval would trigger clocks for mandatory sanctions and an obligation for EPA to impose a FIP.8 In connection with mandatory sanctions, we are taking final action to establish the same sequence for application of mandatory sanctions (if California fails to submit a new 1-hour ozone plan or EPA disapproves the submitted plan) as established in 40 CFR 52.31. Specifically, our finding of failure to submit or our disapproval of the SIP revision will trigger the new source review (NSR) offset sanction in CAA section 179(b)(2) and the highway funding sanction under CAA section 179(b)(1) in the South Coast ozone nonattainment area 18 months, and 24 months, respectively, after the effective date of the finding or disapproval. The sanctions clock will permanently stop once we find the SIP submittal complete (if we had issued a finding of failure to submit a complete plan) or take final action approving (if we had disapproved the plan) SIP revisions meeting the 8 Tribes having Indian country within the South Coast are not subject to the deadline established herein for the State of California nor would they be subject to the imposition of mandatory sanctions if California were to fail to submit a complete SIP revision or if EPA were to disapprove the SIP revision submitted by California in response to this final SIP call. See 40 CFR 49.4(a) and (c). We also note that the FIP provisions in CAA section 110(c)(1) do not apply to Indian country (40 CFR 49.4(d)). E:\FR\FM\07JAR1.SGM 07JAR1 894 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations relevant requirements of the CAA prior to the time the sanctions would take effect. Lastly, we are taking final action to apply the provisions in 40 CFR 52.31 regarding staying the sanctions clock and deferring the imposition of sanctions where we make a preliminary finding that it is more likely than not that the deficiency has been corrected. A FIP clock triggered by a finding of failure to submit or a disapproval of a submitted SIP can be stopped only by EPA approval of a SIP revision correcting the SIP deficiency. TKELLEY on DSK3SPTVN1PROD with IV. Statutory and Executive Order Reviews Under the CAA, a finding of substantial inadequacy and subsequent obligation on a State to revise its SIP arise out of section 110(a) and 110(k)(5). The finding and State obligation do not directly impose any new regulatory requirements. In addition, the State obligation is not legally enforceable by a court of law. EPA would review its intended action on any SIP submittal in response to the finding in light of applicable statutory and Executive Order requirements, in subsequent rulemaking acting on such SIP submittal. For those reasons, this rule: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and VerDate Mar<15>2010 19:37 Jan 04, 2013 Jkt 229001 • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the Tribes with Indian country in the subject ozone nonattainment area would not be subject to the deadline established herein for the State of California nor would they be subject to the imposition of mandatory sanctions if California were to fail to submit a complete SIP revision or if EPA were to disapprove the SIP revision submitted by California in response to this final SIP call, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 8, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 Dated: December 19, 2012. Jared Blumenfeld, Regional Administrator, Region IX. [FR Doc. 2012–31642 Filed 1–4–13; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2012–0960; FRL–9766–4] Interim Final Determination To Stay Sanctions, Imperial County Air Pollution Control District Environmental Protection Agency (EPA). ACTION: Interim final rule. AGENCY: EPA is making an interim final determination to stay imposition of sanctions based on a proposed approval of revisions to the Imperial County Air Pollution Control District (ICAPCD) portion of the California State Implementation Plan (SIP) published elsewhere in this Federal Register. The revisions concern local rules that regulate inhalable particulate matter (PM10) emissions from sources of fugitive dust such as unpaved roads and disturbed soils in open and agricultural areas in Imperial County. DATES: This interim final determination is effective on January 7, 2013. However, comments will be accepted until February 6, 2013. ADDRESSES: Submit comments, identified by docket number EPA–R09– OAR–2012–0960, by one of the following methods: 1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-line instructions. 2. Email: steckel.andrew@epa.gov. 3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105–3901. Instructions: All comments will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through www.regulations.gov or email. www.regulations.gov is an ‘‘anonymous access’’ system, and EPA will not know your identity or contact information unless you provide it in the body of SUMMARY: E:\FR\FM\07JAR1.SGM 07JAR1

Agencies

[Federal Register Volume 78, Number 4 (Monday, January 7, 2013)]
[Rules and Regulations]
[Pages 889-894]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31642]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0721; FRL-9767-3]


Finding of Substantial Inadequacy of Implementation Plan; Call 
for California State Implementation Plan Revision; South Coast

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: In response to a remand by the United States Court of Appeals 
for the Ninth Circuit, and pursuant to the Clean Air Act, EPA is taking 
final action to find that the California State Implementation Plan 
(SIP) for the Los Angeles-South Coast Air Basin is substantially 
inadequate to comply with the obligation to adopt and implement a plan 
providing for attainment of the 1-hour ozone standard. In response to 
this finding, California is required to submit a SIP revision 
correcting this deficiency within 12 months of the effective date of 
this rule. If EPA finds that California has failed to submit a complete 
SIP revision as required by this final rule, or if EPA disapproves such 
a revision, such finding or disapproval would trigger clocks for 
mandatory sanctions and an obligation for EPA to impose a Federal 
Implementation Plan. EPA is also taking final action establishing the 
order in which mandatory sanctions would apply in the event that EPA 
makes a finding of failure to submit a SIP revision or disapproves the 
SIP revision. Specifically, the offset sanction would apply 18 months 
after such finding or disapproval and highway funding restrictions 
would apply six months later. Sanctions would not apply if EPA first 
takes action to stay the imposition of the sanctions or to stop the 
sanctions clock based on a preliminary or final determination that the 
State has corrected the SIP deficiencies.

DATES: This rule is effective on February 6, 2013.

ADDRESSES: EPA has established docket EPA-R09-OAR-2012-0721 for this 
action. The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California, 94105-3901. 
While all documents in the docket are listed in the index, some 
information may be publicly available only at the hard copy location 
(e.g., copyrighted material), and some may not be publicly available at 
either location (e.g., CBI). To inspect the hard copy materials, please 
schedule an appointment during normal business hours with the contact 
listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Wienke Tax, Air Planning Office, U.S. 
Environmental Protection Agency, Region 9, Mailcode AIR-2, 75 Hawthorne 
Street, San Francisco, California 94105-3901, 415-947-4192, 
tax.wienke@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or 
``our'' refer to EPA.

Table of Contents

I. Summary of Proposed Action

[[Page 890]]

II. Response to Public Comments
III. Final Action and Consequences
IV. Statutory and Executive Order Reviews

I. Summary of Proposed Action

    On September 19, 2012 (77 FR 58072), EPA proposed to find that the 
California SIP for the Los Angeles-South Coast Air Basin (South Coast) 
\1\ is substantially inadequate to comply with the obligation to adopt 
and implement a plan providing for attainment of the 1-hour ozone 
national ambient air quality standard (NAAQS or ``standard''). EPA 
proposed this finding pursuant to the ``SIP call'' authority found in 
section 110(k)(5) of the Clean Air Act (CAA or ``Act'').\2\ In our 
proposed rule, we explained that States remain obligated to adopt and 
implement an attainment demonstration plan for the 1-hour ozone 
standard, notwithstanding the revocation of the standard in 2005, under 
EPA's ``anti-backsliding'' regulations governing the transition from 
the 1-hour ozone standard to the 1997 8-hour ozone standard.\3\ See 40 
CFR 51.905(a)(1)(i).
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    \1\ The South Coast includes Orange County, the southwestern 
two-thirds of Los Angeles County, southwestern San Bernardino 
County, and western Riverside County (see 40 CFR 81.305).
    \2\ Section 110(k)(5) provides, in relevant part, that: 
``Whenever [EPA] finds that the [SIP] for any area is substantially 
inadequate to attain or maintain the relevant [NAAQS], * * *, or to 
otherwise comply with any requirement of this chapter, [EPA] shall 
require the State to revise the plan as necessary to correct such 
inadequacies.''
    \3\ Our finding of substantial inadequacy under CAA section 
110(k)(5) for failure to ``adopt and implement'' a 1-hour ozone 
attainment demonstration is not intended as a finding of 
nonimplementation under CAA section 179(a)(4).
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    EPA also proposed to require California to submit a revision to its 
SIP correcting these deficiencies by a date no later than 12 months 
after the effective date of a final rule finding the current SIP 
inadequate. The SIP revision must meet the requirements of CAA section 
182(c)(2)(A) \4\ and demonstrate attainment of the 1-hour ozone 
standard as expeditiously as practicable but no later than five years 
from the effective date of a final SIP call unless the State can 
justify a later date, not to exceed 10 years beyond the effective date 
of the final SIP call. In considering whether a period longer than five 
years is warranted, EPA must consider the severity of the remaining 
nonattainment problem in the South Coast and the availability and 
feasibility of pollution control measures. See section 172(a)(2).
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    \4\ Under CAA section 182(c)(2)(A), the State must submit a 
revision to the SIP that includes a demonstration that the plan, as 
revised, will provide for attainment of the ozone NAAQS. The 
attainment demonstration must be based on photochemical grid 
modeling or any other analytical method determined by EPA to be at 
least as effective. Section 182(c)(2)(A) applies within ozone 
nonattainment areas classified as ``serious,'' but as a general 
matter, areas classified as ``extreme'' for the ozone nonattainment 
area, such as the South Coast, are subject to the requirements for 
lower-classified areas, such as those for ``serious'' areas, as well 
as those prescribed specifically for ``extreme'' areas.
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    We noted that if EPA were to find that California has failed to 
submit a complete SIP revision or if EPA disapproves such revision, 
such finding or disapproval would trigger clocks for mandatory 
sanctions and an obligation for EPA to impose a Federal Implementation 
Plan (FIP). EPA proposed that if EPA makes such a finding or 
disapproval, the offset sanction would apply 18 months after such 
finding or disapproval and highway funding restrictions would apply six 
months later. Sanctions would apply unless EPA first takes action to 
stay the imposition of the sanctions or to stop the sanctions clock 
based on a preliminary or final determination that the State has cured 
the SIP deficiencies.
    EPA proposed this action in response to a decision by the United 
States Court of Appeals for the Ninth Circuit (Ninth Circuit or Court) 
in a lawsuit challenging EPA's partial approval and partial disapproval 
of the 2003 South Coast 1-Hour Ozone SIP.\5\ See Association of 
Irritated Residents v. EPA, 632 F.3d 584 (9th Cir. 2011), reprinted as 
amended on January 27, 2012, 686 F.3d 668, further amended February 13, 
2012 (``AIR v. EPA'').
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    \5\ EPA's final action challenged in the AIR v. EPA case was 
published at 74 FR 10176 (March 10, 2009).
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    The 2003 South Coast 1-Hour Ozone SIP was intended by California to 
update the attainment demonstration for the 1-hour ozone standard for 
the South Coast contained in the 1997/1999 South Coast 1-Hour Ozone SIP 
that EPA approved in 2000. Among other issues, the petitioners in the 
AIR v. EPA case challenged EPA's conclusion that the Agency's 
disapproval of the updated attainment demonstration for the 1-hour 
ozone standard in the 2003 South Coast 1-Hour Ozone SIP did not 
obligate the Agency to promulgate a FIP because the plan that was 
disapproved was not required to be submitted given that the SIP 
contained a fully-approved 1-hour ozone attainment demonstration for 
the South Coast (i.e., the 1997/1999 South Coast 1-Hour Ozone SIP).
    The court disagreed with EPA, and held that EPA must promulgate a 
FIP under CAA section 110(c) or issue a SIP call where EPA disapproves 
a new attainment demonstration unless the Agency determines that the 
SIP as approved remains sufficient to demonstrate attainment of the 
NAAQS.
    In response, EPA reviewed the 1997/1999 South Coast 1-Hour Ozone 
SIP to determine whether it remained sufficient to demonstrate 
attainment of the 1-hour ozone standard notwithstanding the disapproval 
of the updated 1-hour ozone attainment demonstration in the 2003 South 
Coast 1-Hour Ozone SIP and determined that the SIP was substantially 
inadequate to comply with the obligation under EPA's anti-backsliding 
regulations to adopt and implement a 1-hour ozone attainment 
demonstration. In the September 19, 2012 proposed rule, EPA proposed 
this finding of substantial inadequacy based on the following 
considerations:
     Documentation included in the 2003 South Coast 1-Hour 
Ozone SIP showing that motor vehicle emissions were significantly 
underestimated in the 1997/1999 South Coast 1-Hour Ozone SIP; that the 
carrying capacity associated with attainment of the 1-hour ozone 
standard was significantly lower than projected for the 1997/1999 South 
Coast 1-Hour Ozone SIP; and that, as a result, additional emissions 
reductions would be necessary to attain the 1-hour ozone standard by 
the applicable attainment date (November 15, 2010) beyond those 
incorporated in the 1997/1999 South Coast 1-Hour Ozone SIP;
     EPA's ``anti-backsliding'' requirements promulgated in 
2004 governing the transition from the 1-hour ozone standard to the 
1997 8-hour ozone standard and requiring a state to adopt and implement 
an attainment demonstration for the 1-hour ozone standard (40 CFR 
51.905(a)(1)(i)) notwithstanding the revocation of the 1-hour ozone 
standard in areas designated as nonattainment for the 1997 8-hour ozone 
standard; and
     EPA's final determination at 76 FR 82133 (December 30, 
2011) that the South Coast area failed to attain the 1-hour ozone 
standard by the applicable attainment date (November 15, 2010).

See the proposed rule at 77 FR 58072, at 58074-58075 (September 19, 
2012).
    For more information about the 1-hour and 8-hour ozone standards, 
the designations and classifications for the South Coast, the various 
South Coast SIP revisions submitted in response to CAA nonattainment 
area requirements, the litigation over EPA's action on the 2003 South 
Coast 1-Hour Ozone SIP, and the rationale behind the proposed 12-month 
deadline and sequence of mandatory sanctions, please see our September 
19, 2012 proposed rule.

[[Page 891]]

II. Response to Public Comments

    As stated above, on September 19, 2012, EPA proposed to find that 
the California SIP was substantially inadequate to comply with the 
obligation to adopt and implement a plan providing for attainment of 
the 1-hour ozone standard (see 77 FR 58072), and held a 30-day comment 
period which ended on October 19, 2012. On October 16, 2012, we 
received two requests to extend the comment period. On October 25, 
2012, we published a Federal Register notice reopening the comment 
period for 14 days (see 77 FR 65151). This comment period ended on 
November 8, 2012.
    In response to the proposed rule, we received 11 comment letters 
that we have grouped into five categories. We received comments from:
     Pechanga Indian Reservation-Temecula Band of Luiseno 
Mission Indians (``Pechanga Tribe'');
     South Coast Air Quality Management District (SCAQMD), and 
the State of California Air Resources Board (CARB) (``government 
agencies'');
     Coalition for Clean Air, Communities for a Better 
Environment, Natural Resources Defense Council; and Physicians for 
Social Responsibility--Los Angeles, (``environmental and community 
groups'');
     American Chemistry Council, American Coatings Association, 
Consumer Specialty Products Association, International Fragrance 
Association, National Aerosol Association, and Personal Care Products 
Council (``industry groups''); and
     A private citizen.
    None of the commenters challenged the proposed finding of 
substantial inadequacy, the proposed one-year deadline for submittal of 
a new 1-hour ozone attainment plan, the proposed sequence for 
application of mandatory sanctions in the event of failure by 
California to meet the deadline, or the proposed application of the 
provisions in 40 CFR 52.31 regarding staying the sanctions clock and 
deferring the imposition of sanctions. Instead, the comments relate to 
the contents of a future 1-hour ozone attainment demonstration for the 
South Coast and the potential impacts of the SIP call on Indian tribes 
in the region. Below, we set forth a summary of the comments and EPA's 
responses.

Pechanga Tribe

    Comment 1: In its comment letter, the Pechanga Tribe requested an 
opportunity to consult on a government to government basis with EPA 
Region IX regarding the potential impacts of this proposed action on 
federally recognized tribes located in the region.
    Response 1: On November 28, 2012, EPA Region IX staff met with 
members and representatives of the Pechanga Tribe and explained that, 
as stated in the proposed rule, EPA foresaw no direct impact to the 
Tribe due to a SIP call for a new South Coast 1-hour ozone attainment 
demonstration plan. EPA acknowledged that a portion of Pechanga Indian 
country lies within the South Coast 1-hour ozone ``extreme'' 
nonattainment area, but indicated that, under the ``Tribal Authority 
Rule'' (40 CFR part 49), tribes are not subject to SIP submittal 
deadlines. See 40 CFR 49.4(a).\6\ Moreover, under 40 CFR 49.4(c), 
Tribes will also not be treated as States with respect to the mandatory 
imposition of sanctions under section 179 of the Act because of a 
failure to submit an implementation plan or required plan element by a 
specific deadline, or the submittal of an incomplete or disapproved 
plan or element. Thus, the Tribes in the South Coast will not be 
subject to the deadline that we are setting today for the State of 
California for submittal of a new 1-hour ozone attainment demonstration 
for the South Coast, and the Tribes will not be subject to mandatory 
sanctions in the event that sanctions are imposed as a consequence of 
failure to submit or disapproval of the submitted SIP revision.
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    \6\ Under 40 CFR 49.4(a), Tribes will not treated as States with 
respect to specific plan submittal and implementation deadlines for 
NAAQS-related requirements, such as the deadline established in 
today's final SIP call.
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Government Agencies

    Comment 2: In response to the attainment date that would be 
established under the proposed SIP call (i.e. as expeditiously as 
practicable but no later than five years unless the State can justify a 
later date, not to exceed 10 years), SCAQMD indicates that it and CARB 
intend to request and justify that the full ten years are needed for 
the attainment demonstration.
    Response 2: This comment is not relevant for purposes of the 
current rule as it concerns the potential contents of a future SIP 
submittal from the State. Consistent with the requirement of CAA 
section 172(a)(2)(A), EPA would consider the severity of nonattainment 
and the availability and feasibility of pollution control measures in 
determining whether to approve any future submitted plan with an 
attainment date that is later than five years from the effective date 
of this final rule.
    Comment 3: SCAQMD asserts that the new technology provisions of CAA 
section 182(e)(5) are available for the purposes of the new 1-hour 
ozone attainment demonstration plan for the South Coast so long as the 
reductions to be obtained from them are not needed for the first ten 
years after November 15, 1990, i.e. through November 15, 2000, citing 
CAA section 182(e)(5). While the SCAQMD asserts that the plain language 
of section 182(e)(5) settles any question as to whether that provision 
applies to a new 1-hour ozone attainment demonstration plan for the 
``extreme'' South Coast nonattainment area, it also asserts that there 
is no policy reason to interpret the statute to preclude reliance on 
section 182(e)(5) even if the language were ambiguous. CARB's comment 
letter expressed agreement and support for comments provided by SCAQMD 
on the availability of CAA section 182(e)(5) new technology provisions 
for the new South Coast 1-hour ozone attainment demonstration plan.
    Response 3: We did not explicitly address section 182(e)(5) \7\ in 
our proposed SIP call because its availability or lack of availability 
is not directly relevant to the issue of our finding of substantial 
inadequacy of the California SIP for the South Coast with respect to 
the 1-hour ozone standard, or the issues of submittal or attainment 
dates. Thus, this comment is not relevant for purposes of the current 
rule as it concerns the potential contents of a future SIP submittal 
from the State. We will consider the approvability of the future South 
Coast 1-hour ozone attainment demonstration, including the control 
strategy on which it relies, once the plan is submitted, in the context 
of a subsequent rulemaking on the submitted plan.
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    \7\ Section 182(e)(5) states, in part: ``[EPA] may, * * *, 
approve provisions of an implementation plan for an Extreme Area 
which anticipate development of new control techniques or 
improvement of existing control technologies, and an attainment 
demonstration based on such provisions, if the State demonstrates to 
the satisfaction of the [EPA] that (A) such provisions are not 
necessary to achieve the incremental emission reductions required 
during the first 10 years after November 15, 1990; and (B) the State 
has submitted enforceable commitments to develop and adopt 
contingency measures to be implemented as set forth herein if the 
anticipated technologies do not achieve planned reductions.'' 
Provisions in a SIP that rely on section 182(e)(5) are commonly 
referred to as ``black box'' or ``new technology'' provisions.
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Environmental and Community Groups

    Comment 4: Citing the long period of nonattainment and the health 
effects of ozone at levels even below the 1-hour ozone standard, 
environmental and community groups request that the final

[[Page 892]]

rule include more details about the need for a 1-hour ozone plan in the 
South Coast.
    Response 4: EPA believes that the Agency provided sufficient 
support for its finding of substantial inadequacy and related SIP call. 
The rationale for the proposed finding and SIP call is set forth at 77 
FR, 58072, 58074-58075. In short, in response to a remand by the Ninth 
Circuit in the AIR v. EPA case, we proposed to find the approved 1997/
1999 South Coast 1-Hour Ozone SIP is substantially inadequate to 
provide for attainment of the 1-hour ozone standard and is therefore 
substantially inadequate to comply with EPA's ``anti-backsliding'' 
requirement at 40 CFR 51.905(a)(1)(i) to adopt and implement such a 
plan for the South Coast. We based this determination on a review of 
the technical information and updated control measure strategy 
contained in the 2003 South Coast SIP and also considered our 
determination in December 2011 that the South Coast had failed to 
attain the applicable attainment date (2010) for the 1-hour ozone 
standard. Today, we are taking final action to find that the California 
SIP is substantially inadequate and to issue the SIP call for a new 1-
hour ozone attainment demonstration plan for the South Coast on the 
basis of the rationale set forth in the proposed rule.
    Comment 5: The environmental and community groups believe that EPA 
should clearly state that the future 1-hour ozone attainment 
demonstration plan cannot rely on the new technology provisions of 
section 182(e)(5) (i.e., the ``black box''). The groups contend that 
the text of the CAA demonstrates that the black box was not intended to 
be used past the attainment date. In support for this contention, the 
groups note that, under section 182(e)(5), there can be no contingency 
measures that are ``adequate to produce emissions reductions 
sufficient, * * * to achieve the periodic emissions reductions * * * 
and attainment by the applicable dates'' where, as is the case for 
South Coast, the attainment date (2010) has passed.
    Response 5: In issuing a SIP call, CAA section 110(k)(5) directs 
EPA to the extent that EPA deems appropriate to subject the State to 
the requirements of this chapter to which the State was subject when it 
developed and submitted the plan for which such finding was made, 
except that the EPA may adjust any dates applicable under such 
requirements as appropriate (except that the EPA may not adjust any 
attainment date prescribed under part D of this subchapter, unless such 
date has elapsed.) In this case, the prescribed attainment date (2010) 
under part D of the title I of the CAA for extreme 1-hour ozone 
nonattainment areas, such as the South Coast, has passed, and thus, CAA 
section 110(k)(5) authorizes EPA to establish a new attainment date for 
the purposes of the new South Coast 1-hour ozone attainment 
demonstration plan.
    With respect to black box provisions, as noted in response to 
comment 3, we did not explicitly address section 182(e)(5) in 
our proposed SIP call because its availability or lack of availability 
is not directly relevant to the issue of our finding of substantial 
inadequacy of the California SIP for the South Coast with respect to 
the 1-hour ozone standard, or the issues of submittal or attainment 
dates. Thus, this comment is not relevant for purposes of the current 
rule as it concerns the potential contents of a future SIP submittal 
from the State. We will consider the approvability of the future South 
Coast 1-hour ozone attainment demonstration, including the control 
strategy on which it relies, once the plan is submitted, in the context 
of a subsequent rulemaking on the submitted plan.
    Comment 6: The environmental and community groups assert that the 
new requirements that must be fulfilled by SIPs in 1-hour ozone areas 
that fail to attain by the statutory deadline are provided in section 
179(d). They further assert that the failure to attain does not allow 
areas to start all over again under section 182 and that the new plan 
should be governed by sections 110 and 172, neither of which provide 
for a black box. Moreover, they contend that the attainment deadline 
for these areas is governed by section 179(d)(3).
    Response 6: We disagree that the new requirements for the new 1-
hour attainment demonstration are governed by the provisions of section 
179(d). The provisions of section 179(d) are triggered by a finding of 
failure to attain the standard under section 179(c), but under our 
anti-backsliding regulations governing the transition from the 1-hour 
ozone standard to the 8-hour ozone standard, we are no longer obligated 
to determine pursuant to section 179(c) whether an area attained the 1-
hour ozone standard by the applicable attainment date for the 1-hour 
ozone standard. See 40 CFR 51.905(e)(2). In our 2011 determination that 
the South Coast failed to attain the applicable attainment date (2010) 
for the 1-hour ozone standard, we relied on section 301(a) and the 
relevant portion of section 181(b)(2) for the purpose of ensuring 
implementation of 1-hour ozone anti-backsliding requirements, such as 
contingency measures and section 185 major stationary source fee 
programs. See 76 FR 82133, at 82145 (December 30, 2011). We did not 
make the determination of failure to attain under section 179(c) and 
thus the provisions of section 179(d) do not apply.
    As to the applicability of subpart 2 requirements, we note that the 
``substantial inadequacy'' that is the basis for our SIP call relates 
directly to the requirements that continue to apply to an 8-hour ozone 
nonattainment area by virtue of that area's classification under 
subpart 2 for the 1-hour ozone standard at the time we designated the 
area as nonattainment for the 1997 8-hour ozone standard. In this 
instance, the South Coast 8-hour ozone nonattainment area remains 
subject to the obligation to adopt and implement the ``applicable 
requirements'' in 40 CFR 51.900(f) to the extent such requirements 
apply or applied to the South Coast as an ``extreme'' area for the 1-
hour ozone standard in June 2004 (i.e., at designation for the 1997 8-
hour ozone standard). One such ``applicable requirement'' is the 
attainment demonstration requirement. 40 CFR 51.900(f)(13).
    EPA had approved a 1-hour ozone attainment demonstration plan for 
the South Coast (i.e., the 1997/1999 South Coast Ozone SIP) prior to 
revocation, but in response to the remand in the AIR v. EPA case, we 
reconsidered the adequacy of 1997/1999 South Coast Ozone SIP for 
compliance with the obligation to adopt and implement a 1-hour ozone 
attainment demonstration, and proposed to find the 1997/1999 South 
Coast Ozone SIP substantially inadequate to comply with the anti-
backsliding requirements and to require California to submit a new 1-
hour ozone attainment demonstration plan for the ``extreme'' South 
Coast 1-hour ozone nonattainment area within one year of the effective 
date of the final determination.
    Even though we look to subpart 2 (of part D) and 40 CFR 
51.905(a)(1) as the statutory and regulatory basis, respectively, for 
the new South Coast 1-hour ozone attainment demonstration, we do not 
view our SIP call for the South Coast as allowing California to start 
all over again. The new 1-hour ozone attainment demonstration plan 
necessarily will build upon the extensive ozone control strategy 
developed over the past 40 years in the South Coast. Moreover, the new 
plan will not be allowed 20 years to demonstrate attainment of the 1-
hour ozone standard, as was initially allowed for ``extreme'' ozone 
nonattainment areas, under the CAA Amendments of 1990. Rather, the new 
plan must

[[Page 893]]

demonstrate attainment as expeditiously has practicable but no later 
than five years from the final SIP call unless California can justify a 
later date, not to exceed 10 years beyond the final SIP call, by 
considering the severity of the remaining nonattainment problem in the 
South Coast and the availability and feasibility of pollution control 
measures.
    Lastly, while we disagree that section 179(d)(3) applies to 
establish the attainment date for the new 1-hour ozone attainment 
demonstration plan, we note that the attainment deadline under section 
179(d)(3) would only be a little over one year earlier than the 
deadline established in this final action because they both derive from 
the formulation set forth in section 172(a)(2) (``* * * as 
expeditiously as practicable, but no later than 5 years, * * * may 
extend the attainment date * * * for a period no greater than 10 years 
* * *''). The only difference is that the start date for the final SIP 
call will be the effective date of this final rule, whereas section 
179(d)(3) would have established a start date of December 30, 2011, 
i.e., the publication date of our final finding of failure to attain 
the 1-hour ozone standard for the South Coast (76 FR 82133).
    Comment 7: The environmental and community groups contend that, if 
black box measures are allowed for an attainment plan developed after a 
region failed to attain the deadline, the state or local air district 
would have no incentive to close the black box within the attainment 
timeframes laid out in the CAA and could continually roll the black box 
over past the attainment date. Second, as a practical matter, the 
environmental and community groups contend that allowance for black box 
measures for a plan with at most a ten year planning horizon does not 
allow for the time necessary to develop the types of new technologies 
envisioned in section 182(e)(5).
    Response 7: With respect to black box provisions, as noted in 
response to comment 3, we did not explicitly address section 
182(e)(5) in our proposed SIP call because its availability or lack of 
availability is not directly relevant to the issue of our finding of 
substantial inadequacy of the California SIP for the South Coast with 
respect to the 1-hour ozone standard, or the issues of submittal or 
attainment dates. Thus, this comment is not relevant for purposes of 
the current rule as it concerns the potential contents of a future SIP 
submittal from the State.

Industry Groups

    Comment 8: The industry groups assert that EPA should not require 
California to impose further VOC reductions on the consumer and 
commercial products for the new South Coast 1-hour ozone attainment 
demonstration. They point out that the 2003 State Strategy included 
stringent consumer and commercial products rules to achieve VOC 
reductions by 2010, and that this portion of the State Strategy was not 
withdrawn. They further contend that additional VOC reductions are 
unnecessary to provide for attainment of the 1-hour standard, and that 
EPA has the ability to issue a SIP call that focuses on NOX 
reductions to address ozone attainment in the South Coast, citing 
Michigan v. EPA. Finally, the industry groups assert that control 
measures for additional VOC reductions from consumer products would 
likely not constitute reasonably available control technology (RACT) 
because they would not be economically or technically feasible.
    Response 8: Through this action, EPA is not establishing specific 
requirements that must be included as part of the State's plan to 
attain the 1-hour ozone NAAQS. In general, a State has fairly broad 
discretion to select the mix of control measures it will rely on to 
demonstrate attainment and EPA's role is limited to ensuring that the 
State plan meets the minimum criteria in the CAA. We are requiring 
California to submit a new attainment demonstration for 1-hour ozone, 
and we leave to the state's discretion whether to impose further VOC 
reductions on sources.

Private Citizen

    Comment 9: A private citizen states that the effect of methane on 
the air quality region is understated and asserts that methane affects 
the ozone layer. The citizen reports that current studies suggest 
spikes in methane emissions, possibly caused by broken pipelines, 
earthquake faults or malfunctioning mitigation equipment, and suggests 
that a multiple agency response is warranted to address the situation.
    Response 9: This action is being taken with regard to the State's 
plan to address ground-level ozone and does not address the effect of 
pollutants on the ozone layer. EPA agrees that pollutants that affect 
the integrity of the ozone layer are a concern and separate programs 
under the Act address that problem. We note that many control measures 
that reduce VOC emissions have the co-benefit of reducing methane, and 
thus, the new 1-hour ozone attainment demonstration and related control 
measures could indirectly result in reductions of methane emissions in 
the region.

III. Final Action and Consequences

    For the reasons provided in the proposed rule, and after due 
consideration of the comments received, EPA is taking final action, 
pursuant to section 110(k)(5) of the CAA, to find that the California 
SIP is substantially inadequate to comply with the obligation to adopt 
and implement a plan providing for attainment of the 1-hour ozone NAAQS 
in the Los Angeles-South Coast ozone nonattainment area. In response to 
this finding, California must revise and submit to EPA an attainment 
demonstration SIP for 1-hour ozone for the South Coast within 12 months 
of the effective date of this rule. The SIP must provide for attainment 
of the 1-hour ozone NAAQS in the South Coast nonattainment area as 
expeditiously as practicable, but no later than five years from the 
effective date of today's rule, unless the State can demonstrate that 
it needs up to an additional five years to attain in light of the 
severity of the nonattainment problem and the availability and 
feasibility of control measures.
    If EPA finds that California has failed to submit a complete SIP 
revision as required by this final rule, or if EPA disapproves such a 
revision, such finding or disapproval would trigger clocks for 
mandatory sanctions and an obligation for EPA to impose a FIP.\8\ In 
connection with mandatory sanctions, we are taking final action to 
establish the same sequence for application of mandatory sanctions (if 
California fails to submit a new 1-hour ozone plan or EPA disapproves 
the submitted plan) as established in 40 CFR 52.31. Specifically, our 
finding of failure to submit or our disapproval of the SIP revision 
will trigger the new source review (NSR) offset sanction in CAA section 
179(b)(2) and the highway funding sanction under CAA section 179(b)(1) 
in the South Coast ozone nonattainment area 18 months, and 24 months, 
respectively, after the effective date of the finding or disapproval. 
The sanctions clock will permanently stop once we find the SIP 
submittal complete (if we had issued a finding of failure to submit a 
complete plan) or take final action approving (if we had disapproved 
the plan) SIP revisions meeting the

[[Page 894]]

relevant requirements of the CAA prior to the time the sanctions would 
take effect. Lastly, we are taking final action to apply the provisions 
in 40 CFR 52.31 regarding staying the sanctions clock and deferring the 
imposition of sanctions where we make a preliminary finding that it is 
more likely than not that the deficiency has been corrected. A FIP 
clock triggered by a finding of failure to submit or a disapproval of a 
submitted SIP can be stopped only by EPA approval of a SIP revision 
correcting the SIP deficiency.
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    \8\ Tribes having Indian country within the South Coast are not 
subject to the deadline established herein for the State of 
California nor would they be subject to the imposition of mandatory 
sanctions if California were to fail to submit a complete SIP 
revision or if EPA were to disapprove the SIP revision submitted by 
California in response to this final SIP call. See 40 CFR 49.4(a) 
and (c). We also note that the FIP provisions in CAA section 
110(c)(1) do not apply to Indian country (40 CFR 49.4(d)).
---------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    Under the CAA, a finding of substantial inadequacy and subsequent 
obligation on a State to revise its SIP arise out of section 110(a) and 
110(k)(5). The finding and State obligation do not directly impose any 
new regulatory requirements. In addition, the State obligation is not 
legally enforceable by a court of law. EPA would review its intended 
action on any SIP submittal in response to the finding in light of 
applicable statutory and Executive Order requirements, in subsequent 
rulemaking acting on such SIP submittal. For those reasons, this rule:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the Tribes with Indian country in the subject ozone 
nonattainment area would not be subject to the deadline established 
herein for the State of California nor would they be subject to the 
imposition of mandatory sanctions if California were to fail to submit 
a complete SIP revision or if EPA were to disapprove the SIP revision 
submitted by California in response to this final SIP call, and EPA 
notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 8, 2013. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: December 19, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-31642 Filed 1-4-13; 8:45 am]
BILLING CODE 6560-50-P